Brett Kavanaugh, Sportswriter

Could there be clues to the Supreme Court nominee’s views in his college sports reporting?

With Brett Kavanaugh’s Supreme Court confirmation hearings approaching, Senate staffers are poring over the judge’s journal articles and legal decisions, looking for clues to how he might rule on critical issues, such as challenges to Roe v. Wade and the limits of executive privilege. One instructive text might be his address in 2015 to law-school students at the Catholic University of America. The title: “The Judge as Umpire.” Kavanaugh urged his listeners to study the career not of Earl Warren but of Ed Hochuli, an N.F.L. referee. “He’s a model for concise judicial decision-making,” Kavanaugh said. He went on to make the case for the precise drafting of laws by citing a 2014 game between the Green Bay Packers and the Dallas Cowboys. “The Dez Bryant catch this year in the playoff game, right? There was all this debate, Was it a catch?” He said the answer was in the rulebook: “Cowboys fans won’t like this, but it had been drafted quite clearly to cover that situation. It was not a catch!”

Athletic frauds litter the political landscape. (Recall Ted Cruz’s reference to a “basketball ring,” and Mitt Romney’s insistence on using the singular “sport.”) But Kavanaugh’s passion seems genuine. He’s been seen carrying an Adidas duffelbag to work instead of a briefcase, and there were those tens of thousands of dollars in credit-card debt that the White House claimed went toward baseball tickets. In his nomination-acceptance speech, in July, Kavanaugh managed to thank his daughters by bringing up “the historic Notre Dame–UConn women’s basketball game at this year’s Final Four. Unforgettable!”

Given all this, perhaps another body of Kavanaugh’s work warrants closer inspection: the twenty-four articles that he wrote, from 1983 to ’86, as a sports reporter for the Yale Daily News. Kavanaugh’s most ambitious writing came out of the gate, in a story about the freshman football team: “Big, strong, and psyched, the Bullpups rolled over Brown in their season opener.” After that, he settled into workmanlike prose, taking up the basketball beat his junior year.

Could there be hints of potential Supreme Court rulings under headlines like “Elis Trounce Jaspers” and “Hoopsters Head West”? The question was put to some experts. Steve Rushin, who has written for Sports Illustrated for the past three decades, saw a clue in Kavanaugh’s language. “No one was ever shooting room temperature,” Rushin observed. “Everyone was either blazing or ice-cold. In one single sentence: ‘As torrid as Yale’s shooting had been twenty-four hours earlier, it was ice cold in this contest.’ ” Rushin suggested this might indicate “a kind of good-evil, hot-cold, Manichean world view.”

Kavanaugh the sportswriter seemed unwilling to challenge the status quo, noted J. A. Adande, who runs the sports-journalism program at Northwestern’s Medill School. “His tendency to approach his stories from the angles set forth by the coach indicates that he doesn’t want to buck authority figures,” Adande wrote in an e-mail. “It would make sense if he supported unlimited Presidential power.”

William Eskridge, Jr., a constitutional-law professor at Yale Law School, who has praised Kavanaugh, wasn’t so sure about Adande’s argument. “What he’s criticizing in Brett’s sports articles is Brett is too deferential to the subjective understandings of the original coaches,” Eskridge said. He argued that such deference would be “in contrast to Brett’s jurisprudence, which, both in statutory interpretation and constitutional interpretation, either slights or rejects—usually rejects—the subjective intentions of the original drafters.”

Laurence Tribe, a Harvard Law professor who mentored Barack Obama, zeroed in on the lead sentence in Kavanaugh’s account of a midseason game against Cornell: “In basketball, as in few other team sports, it is possible for one person to completely dominate a game.” Was this a harmless observation? Tribe noted, “Kavanaugh’s seeming fascination with single-player domination might be a muscular view of executive power.” On the other hand, he found a departure from Kavanaugh’s typical jurisprudence in “Dartmouth Rally Upends Streak.” “Kavanaugh complained that the refs let the game ‘get completely out of control’ as Dartmouth players ‘consistently hammered’ a Yalie ‘without the whistle blowing’ once,” Tribe said. “One might see in that a rare early condemnation of judicial restraint.”

The experts moved on to style. “I would’ve expected more color and humor, particularly for a student newspaper—for goodness’ sake, have some fun, kids!” Eskridge said. “Contrast him with Justice Scalia. Scalia would’ve been the Howard Cosell of sportswriters, but even better.”

Tribe, however, thought Kavanaugh’s language “read almost like theatre reviews.” He picked out a few phrases: “lit up,” “bruising inside defense.” “Kavanaugh could be one of the Court’s more colorful writers, a group that’s now down to Kagan and—well, just Kagan,” Tribe said. He imagined a future Supreme Court dissent: “Before half a minute of his argument time had elapsed, the Solicitor General hit a hanging curve ball thrown by the Notorious RBG for a four-hundred-and-twenty-five-foot homer.” ♦

This article appears in the print edition of the August 27, 2018, issue, with the headline “Big, Strong, Psyched.”